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34 Sydney L. Rev. 637 (2012)
Some Problems with Extrajudicial Writing

handle is hein.journals/sydney34 and id is 643 raw text is: Some Problems with Extrajudicial Writing Susan Bartie and John Gava* Abstract Since the Second World War, judges in Australia and the United Kingdom have increasingly written legal articles and textbooks. The purpose of this article is to test current dogma, which paints as innocuous the practice of extrajudicial writing on points of law, by showing that there are some very real problems raised by the practice; problems that threaten the integrity of the judiciary. We argue that committed writing by sitting judges amounts to prejudging of potential legal issues, and acts as a signal to potential litigants. It is also argued that committed extrajudicial writing differs in its effects to holdings in previous cases: that it is different in fundamental ways from the writing of academics who subsequently become judges or the advocacy of barristers and solicitors who go on to become judges, and that its contemporary prevalence is not a measure of its appropriateness. Finally, we will offer a solution to the problems that we have identified: judicial silence. ...I have been surprised (to use a mild word) at the increasing number of articles and speeches by judges, especially Supreme Court Justices, in the past 20 years in which they discuss all sorts of issues that seem likely to come before them.' I Introduction In this article we argue that the practice of sitting judges discussing live legal issues in legal literature raises serious problems. In particular we argue that such writing in learned journals and in legal textbooks amounts to 'prejudging' as defined by the law of apprehended bias in the United Kingdom and Australia. As Lucy notes, central to the notion of impartiality in adjudication is that judges have an attitude of 'openness to and lack of pre-judgment upon the claims of the disputants.'2 The danger stemming from published writing about a legal issue is that the judge is tied to an answer to the legal problem and holds a stake in the intellectual outcome. Rather than possessing general thoughts or beliefs about a * Lecturer, Law School, University of Tasmania and Reader, Adelaide Law School, University of Adelaide. We would like to thank Paul Babie, Janey Greene, Anne Hewitt, John Keeler, Suzanne LeMire, Anna Olijnyk, Alexander Reilly, Andrew Stewart, Matthew Stubbs, Adam Webster, four anonymous referees and the solicitor and barristers who provided some of the initial impetus for this article. Andrew Kaufman, 'Judicial Ethics: The Less-often Asked Questions' (1989) 64 Washington Law Review 851, 867. 2 William Lucy, 'The Possibility of Impartiality' (2005) 25 OxfordJournal ofLegal Studies 3, 15.

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